Del. & H. Canal Co. v. Mahlenbrock

• Decision Date: 26 June 1899
• Citation: 63 N.J.L. 281,43 A. 978
• Parties: DELAWARE & H. CANAL CO. v. MAHLENBROCK.
• Court: New Jersey Supreme Court

43 A. 978

63 N.J.L. 281

DELAWARE & H. CANAL CO.

v. MAHLENBROCK.

Court of Errors and Appeals of New Jersey.

June 26, 1899.

Error to supreme court.

Action by the Delaware & Hudson Canal Company against Dorothea Mahlenbrock, administratrix of the estate of John H. W. Bose, deceased. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Queen & Tennant, for plaintiff in error.

Frank B. Colton, for defendant in error.

DEPUE, J. The Delaware & Hudson Canal Company is a corporation created by the laws of Pennsylvania. Its principal office is at Rondout, N. Y., with a branch office in New York City, under the management of William S. Rodie, an agent. The company is engaged in the mining and sale of coal at Honesdale, Pa. The firm of H. H. Apman & Co. are coal dealers at Jersey City. Bose, in his lifetime, resided in Jersey City. The firm of H. H. Apman & Co. applied to an agent of the coal company to purchase coal on credit. Credit was refused unless satisfactory security for payment was furnished. Rodie, the plaintiff's agent, prepared a written guaranty, which was sent to Henry A. Apman, a member of the firm of H. H. Apman & Co. The guaranty was signed by Bose in Jersey City, the signature being obtained by John Apman, another member of the firm. An order for the coal was made out by the Apmans, and sent by mail from Jersey City to the company's address at Rondout. The coal was shipped by the plaintiff from Honesdale, Pa., consigned to Apman & Co. at Jersey City. The unpaid bill for the coal amounted to $933.88. The suit is upon the guaranty. At the trial the learned judge directed a verdict for the plaintiff, and this writ of error was sued out by the defendant on exceptions to his instruction. The plaintiff has not filed in the office of the secretary of state the statement required of foreign corporations transacting business in this state by section 97 of the corporation act of 1896. P. L. 1896, p. 307; Dill, X. J. Corp. § 97. The defense was that, by force of section 98 of the act, the plaintiff was disabled from maintaining its action in this case. The contract on which the plaintiff agreed to sell the coal to Apman & Co. was conditional on the furnishing of satisfactory security. Until the guaranty came to and was accepted by the company, the contract between these parties was not concluded. It does not distinctly appear in the evidence in what manner the guaranty was sent to the plaintiff. The fair inference is that it was mailed to Rondout with the order for the coal. If that be so, the statute does not apply to this transaction. It was so decided by the supreme court in Faxon Co. v. Lovett Co., 60 N. J. Law, 128, 36 Atl. 692.

The important question is whether, upon the proper construction of the statute, it would control in this case, if the guaranty had been made and delivered in this state, so that the contract between these parties would be a contract made by a foreign corporation within the state of New Jersey. The section of the act referred to provides that "every foreign corporation, except banking, insurance, ferry and railroad corporations, before transacting any business in this state, shall file in the office of the secretary of state a copy of its charter or certificate of incorporation attested," etc., "and a statement attested," etc., "of its capital stock authorized and the amount actually issued, the character of the business which it is to transact in this state, and designating its principal office in this state and an agent," etc., "upon whom process against such corporation may be served," etc.; "and upon the filing of such copy and statement the secretary of state shall issue to such corporation a certificate that it is authorized to transact business in this state and that the business is such as may be lawfully transacted by corporations of this state," etc. Section 100 provides that "every foreign corporation transacting any business in any manner whatsoever, directly or indirectly, in this state, without having first obtained authority therefor," etc., "shall for each offense forfeit to the state the sum of $200, to be recovered with costs in an action prosecuted by the attorney general in the name of the state." Section 98 provides that "until such corporation so transacting business in this state shall have obtained said certificate of the secretary of state it shall not maintain any action in this state upon any contract made by it in this state." Section 101 provides that "when by the laws of any other state or nation any other or greater taxes, fines, penalties, license fees or other obligations or requirements are imposed upon corporations of this state doing business in such state or nation," etc., "so long as such laws continue in force in such foreign state or nation the same taxes, fines, penalties, license fees, obligations and requirements, of whatever kind, shall be imposed upon all corporations of such other state or nation doing business within this state." There was no proof in this case that the plaintiff had transacted any business in this state other than the transaction in question. The case turns upon the construction of the statute, and the meaning of the words "transacting any business."

In Hoagland v. Segur, which was an action on a covenant, in a contract for the sale of a "banking business," that the covenantor would "withdraw from the business of banking, and not engage in the same at any time within ten years," and in the clause liquidating the damages the words used were, "to abandon, abstain from, and not engage in the business of banking," it was held that the term "business" did not denote a single act of receiving deposits, but the aggregation of acts which fairly constituted the occupation of a banker; that it was a word frequently used as synonymous with "occupation," and signified more than the doing of acts which are usually done by persons engaged in the pursuit of a particular calling. 38 N. J. Law, 230-237. In Stone's Adm'rs v. Casualty Co., the suit was on a policy of life insurance which contained a condition that "changing occupation, profession, or employment to a more hazardous exposure" should render the policy void. The court construed the words "changing occupation," etc., as meaning engaging in another employment as usual business. Chief Justice Beasley, in delivering the opinion of the court, said: "Tills language has respect to employments, and not to individual acts." 34 N. J. Law, 371-375. Where the charter of a bank provided that its operations of discount and deposit should be carried on in the village of Ithaca and not elsewhere, and the cashier discounted a note at the city...